Details of successful prosecution against E222285

Incident description

The defendant company held duties under s.19 (1) of the Work Health and Safety Act 2011. It was being a manufacturer of desserts and cakes.

On 7 December 2015 a worker was injured after he fell from an industrial step ladder at the defendant's workplace.  He had been clearing a blockage in the tunnel oven and cooler with another worker and was standing on the ladder approximately 2 metres high, positioned at the front of the oven.A

worker paused the pusher arm and conveyor at the control panel to stop movement in the area. The injured worker was using a long pole to push and pull trays out, when the pusher arm suddenly started moving. Either the pole or one of the trays being moved tripped the non-isolated sensor causing the pusher arm to activate.  The pusher arm caught the pole and dragged the worker causing him to fall to the floor. He sustained a fractured left humerus, fractured vertebrae, fractured ribs and punctured lung.

The Court heard that blockages happened frequently within a given shift. The defendant could not produce any written procedures or work method statements in relation to clearing them, but relied on verbal instructions.

When jams occurred workers would turn off the conveyor, which did not isolate any other components. The method adopted by the defendant made it likely that with power remaining to the sensor, the product pusher could be activated while attempting to clear the blockage, as occurred in this instance.

An Elevating Work Platform (EWP) was available for use on the day of the incident, but was not immediately available at the time. The defendant had no written policies regarding the use of the EWP and failed to ensure that workers used it when carrying out work at height. Post incident, the defendant ensured the EWP was used for working at heights, the stoppage arm was reprogrammed (by adding interlocks) to prevent movement if the sensor beams were broken, and an alarm was installed in the outfeed area on the exit conveyor to alert workers of a struck tray.

Court result

The defendant pleaded guilty in the Toowoomba Magistrates Court on 27 February 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

Magistrate Graham Lee fined the defendant $25,000 and ordered professional and court costs totaling $1589.40. No conviction was recorded.

In reaching a decision, the Magistrate accepted noteworthy mitigating factors including the defendant's significant accolades and strong community mindset and despite this safety breach, was a very good corporate citizen, operating for 23 years employing 100 people. The court found instructions to workers could have been better, acknowledging that there was a “system of sorts in place but it was not adequate in these circumstances”.

His Honour was aware that the company was in straitened financial circumstances, in liquidation at the time of sentence and took into account that the very expensive oven procured to streamline, automate and enhance safety, ultimately contributed to the insolvency. Specific deterrence may have become of diminished importance, however general deterrence remained relevant. In deciding penalty, Magistrate Lee took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the food services industry where there is exposure to risks from falls from height, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly. When deciding and implementing control measures associated with the risk of serious injury or death, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)
• Managing the risk of falls at workplaces code of practice 2021 (PDF, 3.9 MB)

Details